The Email Privacy Act Makes Its Way To The Senate, Again

A bipartisan effort to improve digital privacy laws in the United States was introduced to the Senate on Thursday, in a move likely shadowed by the Senate showdown on healthcare early Friday morning.

Senators Mike Lee (R-Utah) and Patrick Leahy (D- Vt.) introduced the ECPA Modernization Act of 2017 -- legislation that would require law enforcement and government authorities to obtain a warrant before accessing Americans’ digital communication. 

Only a subpoena is currently needed for the government to have full access to Americans’ emails that are more than 180 days old. A warrant would require a judge’s signature, and probable cause.

The ECPA Modernization Act would also require a warrant for obtaining geolocation data and would set new limits on metadata collection and allow companies to notify users when searches occur. It would also provide a remedy if the government did access cloud content without a warrant, making that data inadmissible in court.

The Electronic Communications Privacy Act (ECPA), the law that currently dictates the parameters for digital privacy in the United States, is severely outdated. Originally signed into law in 1986 by President Ronald Reagan, the ECPA was created before the advent of the modern internet. The legislation defines any email older than 180 days as “abandoned” and accessible to government officials, a surprising fact for a country where residents often keep their email addresses longer than their home address.

"This is the privacy bill all Americans need and deserve to protect their everyday digital communications,” states Chris Calabrese, vice president of policy at the Center for Democracy & Technology. “Senators Lee and Leahy have introduced a comprehensive piece of legislation that is workable for law enforcement, but most importantly, ensures that citizens can fully realize their Fourth Amendment rights in our digitally-powered world. In a time when common ground can be hard to find, members of Congress should support this bipartisan approach, and their constituents should tell them they want to enjoy the benefits of smartphones and the internet without government snooping."

The Electronic Frontier Foundation (EFF) also urges Congress to quickly act on digital privacy reform. 

“The law has not kept pace with advances in technology and the habits of users,” writes Sophia Cope, a staff attorney on the EFF’s civil liberties team, in a blog post. With the rise of cloud computing, individuals have come to rely on technology companies to store private emails, text messages, social media posts, photos and other documents, often indefinitely. While such content might contain the most personal of thoughts and details about an individual, many users do not realize that an email stored on a Google or Microsoft server has less protection than a letter sitting in a desk drawer at home. And users often can’t control how and when their whereabouts are being tracked by technology.” 

The bill also has widespread support from technology companies. Google, Amazon, Facebook, Twitter and Spotify all signed a coalition letter in support of the Email Privacy Act (H.R. 387) when it passed through the House earlier this year. 

This is not Lee and Leahy’s first time to the ECPA reform arena, nor is it the first bipartisan effort to improve digital privacy. The Email Privacy Act has been introduced to every Congress in some form since 2013 and the privacy legislation introduced by Representatives Kevin Yoder (R-Kansas) and Jared Polis (D-Colorado) had more co-sponsors than any other the bill in the 114th Congress (2015-2016).

The bill has had little luck in the Senate, even with such widespread bipartisan support. The bill never made it out of subcommittee the first time it was introduced to the Senate, and then faced a set of weakening amendments from Republican Senators John Cornyn of Texas, the Senate Majority Whip, and Jeff Sessions of Alabama, the current Attorney General. Leahy and Lee withdrew that bill from consideration last year due to concerns that the proposed amendments -- such as allowing law enforcement officials to obtain digital communication without a warrant if a crisis situation was deemed to exist by the government -- would actually hamper digital privacy. 

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